Senator Dagana Ndayako & Anor. V. Senator Isa Mohammed & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
RHODES-VIVOUR, J.C.A.
The Senatorial elections were held on the 12th day of April 2003 to fill the offices of Senators for all the States in Nigeria. The elections were conducted by the Independent National Electoral Commission (not a party to the petition).
The 1st appellant, 1st respondent and one Engr. Y. Y. Sani contested for the Niger South Senatorial District.
The 1st appellant contested as candidate of the United Nigeria Progressive Party (UNPP) and was credited with 51,169 votes.
Engr Y. Y. Sani contested as candidate of the All Nigeria Peoples Party (ANPP) and was credited with 44,643 votes, while the 1st respondent contested as candidate of the Peoples Democratic Party (PDP) and was credited with 200,489 votes.
The 1st respondent won the election as the elected Senator for Niger South Senatorial District and was duly returned by the Independent National Electoral Commission.
Dissatisfied with the results, the petitioner brought a petition before the National Assembly/Governorship and Legislative Houses Election Petition Tribunal of Niger State holden at Minna, Niger State challenging the declaration of the 1st respondent as Senator for the Niger South Senatorial District.
There are three grounds in the Petition. They arc, without their particulars as follows:
“GROUND 1
That the 1st respondent was at the time of the election not qualified to contest the election to the office of Senator of the Federal Republic of Nigeria representing Niger South Senatorial District.
Ground 2
That the 1st respondent was not duly elected by majority of lawful votes cast at the election.
Ground 3
That the election was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act.”
The petition was heard by K. Bamisile, J., I. M. Zango, J., A. Jauro, J., U. M. Sadiq, J. and Kadi S. K. Sauri.
On a preliminary objection raised by learned counsel for the 1st respondent, the Tribunal struck out grounds 2 and 3 of the petition in a ruling delivered on the 9th of July, 2003.
The petition was heard on ground 1 alone. At the hearing of the petition four witnesses testified for the petitioner.
The 1st respondent testified and called two witnesses for his defence. Nine documents were admitted as exhibits.
The 3rd to 12th respondents did not call anyone to give evidence. They relied on the evidence given by the 1st respondent.
In a considered judgment delivered on the 30th of July, 2003, the Tribunal dismissed the petition.
Earlier on and before the hearing of the petition, the petitioner/appellant filed a notice of appeal on 21/7/03 against the ruling of the Tribunal delivered on 9/7/03 wherein grounds 2 and 3 in the petition were struck out. The interlocutory appeal is appeal No.CA/A/EP/138/2003.
On 31/7/03 the petitioner/appellant filed a notice of appeal against the judgment of the Tribunal delivered on 30/7/03 wherein the Tribunal dismissed the petition on the sole ground remaining for consideration (ground 1). The appeal is appeal No.CA/A/EP/164/2003.
By order of court dated 23/9/03 both appeals were consolidated, and in accordance with Order 6 rules 2, and 4 of the Court of Appeal Rules, briefs of argument were filed and exchanged by the parties. Briefs were finally settled as follows:
(1) Amended appellants consolidated brief of argument filed on 26/4/04.
(2) 1st respondents consolidated brief of argument filed on 19/5/04.
(3) 3rd to 12th respondents consolidated brief of argument filed on 17/5/04.
(4) Reply to notice of preliminary objection on appeal No. CA/A/EP/138/03, and appeal No. CA/A/EP/164/03 filed on 2/6/05.
At the hearing of the appeal on 9/5/2006, learned counsel for the appellants adopted his consolidated brief filed on 17/5/04 and his reply brief filed on 2/6/05 and urged us to allow the appeal.
Learned counsel for the 1st respondent adopted his consolidated brief filed on 19/5/04 and urged us to dismiss the appeal.
The 1st respondent filed preliminary objections to both appeals. Both preliminary objections are contained in the 1st respondent’s consolidated brief of argument filed on 19/5/04.
The appellant replied to both preliminary objections in a reply to notice of preliminary objection filed on 2/6/05.
Order 3 rule 15(1) of the Court of Appeal Rules enjoins a respondent intending to rely on a preliminary objection to the hearing of the appeal to give the appellant three clear days notice before the hearing, setting out the grounds of objection and shall file such notice together with seven copies thereof with the Registrar within the same time.
Arguments on the preliminary objection can, as was done in this case, be incorporated in the briefs, thereby obviating the need to file separate notice of preliminary objection. See: Sanni v. Ademiluyi (2003) 3 NWLR (Pt. 807) p. 318; Ajide v. Kelani (1985) 3 NWLR (Pt.12) p. 248.
I shall now consider the preliminary objections.
1st respondent’s preliminary objection to appeal No.CA/A/EP/138/2003.
Learned counsel for the 1st respondent brought the preliminary objection to the appellant’s interlocutory injunction on one ground. It reads:
“That there is no appeal to be argued as record of proceedings of the trial Tribunal has not been compiled and the motion to depart from the Rules has not been moved.”
Learned counsel for the 1st respondent observed that the appellant filed an application on 23/7/03 for an order for departure from the rules of this court to enable him compile records of appeal, but never moved the application. Relying on: P. Okeke & 9 Ors. v. I. O. Nwokoye & 3 Ors. (1999) 13 NWLR (Pt.635) p.495; Masterpiece Chemicals Co. Ltd. v. Afam Akputa (2000) 4 NWLR (Pt. 653) p. 459.
He submitted that since there is no properly compiled record of appeal, the appeal ought to be struck out.
In response, learned counsel for the appellant observed that the application for departure filed on 23/7/03 has been overtaken by events, contending that the two appeals were consolidated and briefs were filed on the basis of the latter record, compiled by the Secretary of the Tribunal and forwarded to this court, observing that appellants brief was not based on documents exhibited to application filed on 23/7/03.
He urged us to dismiss the preliminary objection.
The record of appeal is the final reference of events, step by step, that took place in the court. See Fawehinmi Construction Co. Ltd. v. Obafemi Awolowo University (1998) 5 SC. p. 48; (1998) 6 NWLR (Pt.553) 171.
Record of proceedings and the notice of appeal after compilation become the record of appeal. The Court of Appeal is bound by the record of appeal. After the Tribunal delivered interlocutory ruling striking out grounds 2 and 3 in the appellants petition, the appellants filed a notice of appeal, and before us, an application for departure from the Rules to enable him compile the record of appeal.
My Lords, the motion was never moved. It is worthless. In my view, abandoned because it was no longer necessary. The consolidated brief of the appellants is based on the record of appeal compiled by the Secretary of the Tribunal and transmitted here at the end of trial and after appeal in the substantive action was filed. Preliminary objection on appeal No. CA/A/EP/138/03 fails and it is hereby dismissed.
1st respondent’s preliminary objection to appeal No.CA/A/EP/164/2003
The 1st respondent’s preliminary objection to the hearing of appeal No. CA/A/EP/164/2003 was brought on three grounds. They are:
“Ground 1.
That the record of proceeding was not compiled according to law.
Ground 2.
The appellants have failed to comply with the Rules of the court and thus there is no proper appeal before this court.
Ground 3.
That the purported record of appeal did not satisfy the requirement of certification hereby making the said record of appeal inadmissible for the purposes of this appeal.”
Grounds 1 and 2 shall be taken together since they are allied.
Learned counsel for the 1st respondent observed that in settling the records; no meeting was held by the Registrar of the Tribunal and counsel and there was no order to depart from the rules contending that in view of this, there is no properly compiled record of proceedings that this appeal can be predicated on. Reference was made to: Order 3 rules 1 and 2 of the Court of Appeal Rules; Masterpiece Chemicals Co. Ltd. v. Afam Akputa (2000) 4 NWLR (Pt.653) p.459.
Learned counsel for the appellants adopted his submissions made in reply to the notice of preliminary objection to appeal No. CA/A/EP/138/M/03 and in further submissions contended that since learned counsel for the 1st respondent never complained that relevant documents were omitted from the record of appeal he has failed to show in what way his right to fair hearing was breached by reason of the absence of settlement of record by the parties.
Order 3 rule 8(1) and (2) of the Court of Appeal Rules states that:
“(1) The Registrar of the court below shall after the expiration of the time prescribed for filing notice of address for service, summon the parties before him to –
(a) settle the documents to be included in the record of appeal;
(b) fix the amount to be deposited by the appellant to cover the estimated cost of making up and forwarding the record of appeal;
(c) fix the amount to be deposited by the appellant or secured by bond for the due prosecution of the appeal and the payment of any costs.
(2) The said Registrar shall whether any of the parties attend or not, provided that notice has been duly served on those parties who filed an address for service, proceed to settle and determine these matters in accordance with the provisions of rules 9, 10 and 11 of this Order.”
It is clear from the above that it is the duty of the Registrar of the trial court to compile the record of appeal and forward it to the Court of Appeal, but before compiling the records, the Registrar should invite the parties to a meeting. The purpose of the meeting is to ensure that documents etc. relevant for the appeal are not left out from the record. It is though, not mandatory that parties attend the meeting. See Order 3 rule 8(2) supra.
My Lords, the Secretary of the Tribunal prepared the record of appeal and transmitted it to this court. The appellants brief and indeed all the briefs in this appeal were prepared on records compiled by the Registrar/Secretary of the Tribunal and not on records compiled by the appellant. Consequently after the Secretary compiled the record there was no need for any of the parties to ask for departure more so as none of the parties complained of documents/processes omitted from the record of appeal compiled by the Registrar/Secretary of the Election Petition Tribunal.
In my view the record of appeal was compiled according to law, and the record before this court is a complete transcript of the record of proceedings from the lower court.
Both grounds of the preliminary objection are hereby dismissed.
Ground 3.
That the record of appeal did not satisfy the requirement of certification thereby making the said record of appeal inadmissible for the purposes of this appeal.
Learned counsel for the 1st respondent urged us to dismiss the appeal since several pages of the records were not certified. Reliance was placed on: Oba Aruna Okiki II and 7 Ors. v. Nasiru Jagun and 4 Ors.
Responding, learned counsel for the appellants observed that section 111 of the Evidence Act does not stipulate that each page of the record of appeal must be certified. He submitted that there is presumption in favour of the correctness of the record, more so as the 1st respondent is not complaining that the record is not correct. Relying on: Adisa v. A.-G., Kwara State & Ors. (2002) 14 WRL p.99; I.B.W.A. Ltd. v. Imano (Nig.) Ltd. (2001) 17 SC. WRN 1; (1988) 3 NWLR (Pt. 85) 633.
He urged us to dismiss the objection.
By virtue of the provisions of section 109(a)(ii) and section 113(i) of the Evidence Act, the record of appeal is a public document and for it to be authentic or relied on by a court of competent jurisdiction it must be certified. Where the record of appeal is not certified the presumption of regularity will not be ascribed to it.
See: Onobruchere and Anor. v. Esegine and Anor. (1986) 1 NSCC Vol. 17 p. 351; (1986) 1 NWLR (Pt. 19) 799; Mavolo v. Maram (1994) 3 NWLR (Pt.331) p.197.
A certified copy is a copy of a document certified as true and signed by an officer who has the custody of the original. Certified copies are by statutes deemed to be originals. I have examined the record of proceedings and it is so clear on the face of it that it was compiled by P. U. Nwachukwu, Secretary of the Election Petition Tribunal and duly certified by him.
Section 111 of the Evidence Act states that the following are required before a document can be regarded as a certified copy:
(a) the legal fees must be paid where payable,
(b) there must be a certificate at the foot of such a document that it is a certified copy of the Original or part thereof,
(c) it must be dated,
(d) it must be subscribed by the officers issuing the document with the name and title of office:
(e) it must be sealed.
See: Oba Aruna Okiki II & 7 Ors. v. N. Jagun & 4 Ors. supra.
Indeed there is a presumption in favour of the correctness of the record of appeal and a party complaining that the record is not correct can only do so by filing an affidavit deposing to facts that the record is not correct. See:
This was not done in this case, and so the objection is not a serious one.
Order 3 rule 9(4) of Court of Appeal Rules states that:
“It shall not be necessary for copies of individual documents to be separately certified but the Registrar of the court below shall certify as correct each copy of the record transmitted by him in accordance with these Rules.”
This was done in this appeal. There has been substantial compliance with requirements for certification of the record of appeal, and any omissions are domestic, clearly, problems. Omissions of the Registry of the Tribunal and these omissions cannot be visited on the parties, moreso as this court is the final court for appeals in Election Petition cases. This ground is hereby dismissed.
Preliminary objections now out of the way, I now consider the substantive appeals.
Appeal No. CA/A/EP/138/2003
Learned counsel for the appellants presented only one issue for determination of this appeal. It reads:
“Whether the Independent National Electoral Commission was not joined as a respondent in the petition and if so whether the failure to join the Independent National Electoral Commission was capable of rendering grounds 2 and 3 of the petition incompetent.”
Learned counsel for the appellants observed that the Independent National Electoral Commission (INEC) was/is a party to the petition and the problem was that it was not numbered.
He contended that failure to number INEC as one of the respondents is a failure or defect that relates only to form of the petition and not its substance.
Relying on section 49(4) of the Electoral Act, 2002 he urged us to answer this issue in favour of the appellants.
Learned counsel for the 1st respondent observed that the appellants are arguing on appeal, contrary argument/view from what they contended in the lower Tribunal as it relates to the joining of INEC. Relying on: S.G.F v. S.G.B. (Nig.) Ltd. (1997) 4 NWLR (Pt. 497) p. 8, he urged us to answer the issue raised by the appellants against them.
Learned counsel for the 2nd – 12th respondents observed that INEC was not joined at all in the petition and the non-joinder is capable of rendering the petition incompetent. Relying on: section 133(2) of the Electoral Act, 2002; Alhaji A. Tafida v. Alhaji Bafarawa (1999) 4 NWLR (Pt. 597) p.70. He urged us to answer the issue raised in his favour.
Grounds 2 and 3 of the petition were struck out by the lower Tribunal. They read:
Ground 2
That the respondent was not duly elected by majority of lawful votes cast at the election.
Ground 3
That the election was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act.
On a preliminary objection filed by learned counsel for the 1st respondent before the lower Tribunal contending inter alia that since INEC was not joined, the Tribunal had no jurisdiction to entertain the petition, the Tribunal agreed with learned counsel. It said, see page 140 of the record of appeal:
“In an allegation of electoral malpractices against an official of the Electoral Commission, the non-joinder of the Electoral Commission has the consequence of depriving the Tribunal of jurisdiction to adjudicate and pronounce on the issue which fundamentally affect the proper function of the Commission in the exercise of its jurisdiction under the relevant Decree. In the instant case NECON was not joined to the action, neither the Tribunal nor Court of Appeal has the jurisdiction to pronounce on issues of corrupt practices leveled against NECON presiding officer …”
At the lower Tribunal, the appellant was represented by Mr. Fred Agbeyegbe, when the application dismissing grounds 2 and 3 were heard.
At the lower court, the argument of Mr. Fred Agbeyegbe was that the issue of joining INEC was surplusage but on appeal, Mr. Y. C. Maikyau says something different. He says INEC was indeed joined. In the record of proceedings, there are twelve parties respondents and INEC is not one of them. Counsel is allowed to urge the semblance of the truth while the court must at all times pursue the truth. At the lower Tribunal INEC was not one of the twelve respondents and so not a party in the proceedings and that explains why grounds 2 and 3 were struck out.
By virtue of the provisions of Order 1 rule 20 of the Court of Appeal Rules and section 16 of the Court of Appeal Act, 1976 this court has full jurisdiction over the whole proceeding before it as if the proceeding had been instituted in this court as a court of first instance.
A party should be consistent in stating its case and proving it. He will not be allowed to present one case at the trial court and an entirely different one on appeal. See: Ajide v. Kelani (1985) 3 NWLR (Pt.12) p. 248; Adone v. Ikebudu (2001) 14 NWLR (Pt.733) p.385.
A party is to be consistent with the case he sets up and not shift ground on appeal as it suits his fancy. In this case the appellants have not been consistent.
My Lords, the grounds struck out are on grounds of electoral malpractices. These are allegations against officials of the electoral body and the electoral body itself. The electoral body must also be joined to the petition. The non-joinder of the electoral body deprives the Election Petition Tribunal of jurisdiction to hear the petition and pronounce on the issues which fundamentally affect the electoral body in the exercise of its jurisdiction under the enabling Law. See: Ikpatt v. Iyoho (1999) 7 NWLR (Pt. 609) p. 58; Gbadamosi v. Azeez (1998) 9 NWLR (Pt.566) p.471.
The lower Tribunal was right in my view to strike out grounds 2 and 3 in the petition.
Appeal No: CA/A/EP/164/2003
Learned counsel for the appellants formulated three issues for determination of this appeal. They are:
“1. Whether the proceeding of the Tribunal conducted from the 24th day of July, 2003 to the delivery of judgment on the 30th day of July, 2003 is not a nullity in view of the pending application for stay of proceedings before the Court of Appeal which is predicated on the appellants appeal against the ruling of the Tribunal delivered on the 9th of July, 2003.
- Whether the 1st respondent on record is Mohammed Issa Waziri who is also alleged to be the same as Waziri Mohammed Isa or Mohammed Waziri or Waziri Mohammed as to entitle the 1st respondent to the benefit of exhibits A, B, C and consequently exhibit F.
- Whether the National Assembly/Governorship and Legislative Houses Election Petition Tribunal of Niger State is the Tribunal contemplated by section 285(1) Column A of the Sixth Schedule to the Constitution of the Federal Republic of Nigeria, 1999 as to be competent to entertain the appellants petition.”
Learned counsel for the 1st respondent presented two issues for determination of this appeal to wit:
“1. Whether the existence of an interlocutory appeal in an election petition will stop the Election Tribunal from proceeding with the substantive case before it.
- Whether the appellant proved their allegation contained in their petition as to warrant the Election Tribunal to give judgment in their favour.”
In his brief, learned counsel for the 2nd – 12th respondents submitted two issues for determination of the appeal. It reads:
“1. Whether the substantive case which is the Election petition before the Election Tribunal should have been discontinued in view of the existence of an interlocutory appeal.
- Whether the appellant satisfied the Election Tribunal beyond reasonable doubt in proving the allegation contained in their petition.”
It is very well settled that this court has the power to adopt or even formulate issues that would determine the grievance in the appeal.
See: Ikegwuoha v. Ohawuchi (1996) 3 NWLR (Pt.435) p.146; Aduku v. Adejoh (1994) 5 NWLR (Pt. 346) p. 582.
And so this appeal will be determined on the issues formulated by the appellant.
Issue No.1
Learned counsel for the appellant observed that the proceedings of the Tribunal conducted between 24th of July, 2003 and the 30th day of July, 2003 is a nullity since an appeal was pending in the Court of Appeal against the Tribunal’s refusal to grant a stay of proceedings. Reliance was placed on: Nig. Arab Bank Ltd. v. Comex (1999) 6 NWLR (Pt. 608) p. 648: Cheshe v. NICON Hotels Ltd. (1998) 12 NWLR (Pt.576) p. 82: Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) p. 254.
Learned counsel for the 1st respondent observed that authorities cited by learned counsel for the appellant are not relevant to Election Petition but ordinary civil proceedings. He further observed that Election Petitions do not allow for interlocutory appeals and so the interlocutory appeal is incompetent. Reference was made to: Ndu v. Onuaguluchi (No.1) (1999) 11 NWLR (Pt.625) p.152.
Relying on paragraph 24(1) of the 1st Schedule to the Electoral Act, 2002, section 137 of the Electoral Act learned counsel for the 2nd – 12th respondents observed that the directive on 24/7/02 that the appellant should open his case notwithstanding the interlocutory appeal filed by the appellant does not render its proceedings and judgment a nullity as the Tribunal acted within its powers as provided for in the Electoral Act, 2002.
On the 21st of July, 2003, the Tribunal refused the appellants application for stay of proceedings (i.e. stay to hear the petition). See pages 153 to 159 of the record of appeal. On 24/7/03, see page 160 of the record of appeal, learned counsel for the appellant told the Tribunal that he had filed an appeal against the ruling striking out grounds 2 and 3 in the petition (i.e. the ruling delivered on 9/7/03. (See page 14 of the record of appeal), and that he has gone to the Court of Appeal to repeat the same application. That means to ask for a stay of proceedings again in the Court of Appeal, since the Tribunal refused to stay proceedings.
The issue is whether the Tribunal was right to proceed with the hearing of the petition after being told by counsel for the appellant that he had filed an appeal, and an application for stay of proceedings in the Court of Appeal.
The appeal filed in the Court of Appeal against the ruling of the Tribunal delivered on 9/7/03 wherein the Tribunal struck out grounds 2 and 3 of the petition is an interlocutory appeal and an appeal does not operate as a stay.
An appellant seeking stay of proceedings has the added responsibility to file an application for stay of proceedings before the Court of Appeal and if successful, a stay of proceedings is granted.
The only way to inform a trial Judge that an application for stay of proceedings is pending before the Court of Appeal is to tender a certified true copy of the said process to the trial court and not by informing the trial Judge orally as was done in this case.
The Court of Appeal is a superior court to the Election Tribunal and so the later should not undermine the former in the exercise of its jurisdiction under the Constitution.
In this case the trial Judge was right but for the wrong reasons to refuse to stay proceedings. Once a certified true copy of the application for stay of proceedings before the Court of Appeal was not shown to the trial Judge, the Judge was right to proceed with the hearing of the petition.
Record of appeal reveals that certified true copy of stay of proceedings pending in Court of Appeal was not before the Tribunal.
Accordingly, the Tribunal was right to hear the petition.
Issue No.2.
Section 65(2)(a) of the Constitution states that –
“A person shall be qualified for election under subsection (1) of this section if-
(a) he has been educated up to at least School Certificate level or its equivalent.”
The 1st respondent is a Senator representing Niger South Senatorial District of Niger State. According to the Constitution, to be qualified for election as a Senator, the person seeking to be elected must have been educated up to at least School Certificate level or its equivalent. It is the pleading of the appellants that at the time of the senatorial elections the 1st respondent was not so qualified.
Dismissing the petition the Tribunal had this to say. See page 184 of the record of appeal:
“The allegation that the 1st respondent forged his academic qualification he presented to INEC is just a figment of the petitioner’s imagination. This petition has not been proved beyond reasonable doubt by the petitioner as required by the law under section 138(1) of the Evidence Act. Consequently this petition is unmeritorious, speculative, frivolous, vexatious, spurious, incompetent, and malafide, and it is hereby dismissed.”
Learned counsel for the appellants submitted that the appellants proved beyond reasonable doubt that exhibits A, B, C and F presented to Election the basis of which the 1st respondent was presented for election into the Senate do not belong to the 1st respondent and reliance on them by the 1st respondent is fraudulent, a forgery and illegal. Reliance was placed on: Esenewo v. Ukpong (1999) 6 NWLR (Pt.608) p. 611.
Learned counsel for the 1st respondent observed that the appellants were unable to prove beyond reasonable doubt the pleadings which are of a criminal nature.
As regards the identity of the 1st respondent, he urged this court to hold that Mohammed or Mohammed Isah Waziri are the same. Learned counsel for the 2nd – 12th respondents observed that based on the evidence before the Tribunal, the appellants failed to discharge the burden of proof placed on them.
Relying on section 135(1) of the Evidence Act and the exhibits tendered, he urged us to dismiss the petition as the appellants failed to discharge the burden of proof on them.
The Tribunal found and I agree with that finding, that the 1st respondent passed out from Igbo-Elerin Grammar School, Ibadan and proceeded to Government College, Bida where he was issued with exhibit F, i.e. Higher School Certificate where he passed two subjects at subsidiary level. That was the finding of the Tribunal.
Exhibit F is the 1st respondent’s Higher School Certificate indicative of the fact that he sat for the HSC exams. The position of the law is that where documentary evidence supports oral testimony such oral testimony becomes more credible. This is so as documentary evidence serves as a hanger from which to assess oral testimony. See Kimdey v. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) p.445; Omoregbe v. Lawani (1980) 3-4 SC. p.117; Buraimoh v. Esa (1990) 2 NWLR (Pt. 133) p.406.
My Lords, since there is evidence that the 1st respondent sat for the West African School Certificate Exams and the Higher School Certificate this is more than is required by section 65(2)(a) of the Constitution. What is required is compelling evidence that a candidate for Senate is educated up to the required level and it is not necessary that such a candidate must produce his West African School Certificate.
In this case the 1st respondent comfortably exceeds the educational requirement. Exhibit F is conclusive of that fact.
On the identity of the 1st respondent, the Tribunal found that Mohammed Waziri, Issah Mohammed is one and the same person. See page 182 of the record of appeal. After a thorough evaluation of evidence the Tribunal found that candidate 029 Mohammed Waziri sat and passed W.A.S.C. in 1968.
The Tribunal continued:
“1st respondent stated in his evidence-in-chief that he is the same candidate 029 that sat for the W.A.S.C. examination in 1968.
….
DW1 gave evidence … That the candidate 029 who sat the WASC examination in 1968 is the 1st respondent. DW1 was a student in the same school and he passed in 1968. DW2 who was also a student in the school in 1968 told this Tribunal that the 1st respondent was only Northern extraction that sat for 1968 exam with them.”
Concluding, the Tribunal quite rightly in my view according to it drew information from oral evidence of PW1, PW3, PW4, DW1, DW2 and DW3 and exhibits A, B, C, D, E, F, G, H, J and K that the Tribunal had no option than to believe evidence of PW4, the current Principal of the School and DW2 who is a Permanent Secretary in Oyo State.
I have examined the evidence and I am satisfied that the Tribunal was right to come to the conclusion it arrived at. The 1st respondent is/was indeed more than qualified to stand election for the office of Senator. The appellants failed to prove their case beyond reasonable doubt or at all.
Issue No.3
Learned counsel for the appellants argued that there is no law or constitutional provision which establishes the National Assembly/Governorship and Legislative Houses Election Petition Tribunal to hear election petitions from both the National Assembly Election Petitions and the Governorship and Legislative Houses Petitions in Niger State.
He urged us to hold that the Tribunal which heard the appellant’s petition lacks the competence to do so and the entire proceedings are a nullity.
Learned counsel for the 1st respondent argued that the decision of the President of the Court of Appeal to fuse together the Tribunals in section 285(1) and (2) will not amount to breach of the constitutional provision.
He urged this court to dismiss the appeal.
No submissions were made by learned counsel for the 2nd – 12th respondents on this issue.
Under section 285 and the 6th Schedule of the Constitution, the President of the Court of Appeal has unlimited power to set up Election Petition Tribunals. The President can fuse together Governorship petitions, with Legislative petitions to be heard by one Tribunal. This is for administrative convenience and the quick dispensation of justice.
This issue clearly lacks merit.
For this and all that I have been saying, this appeal has no redeeming features. It is hereby dismissed. There shall be no order on costs.
Other Citations: (2006)LCN/2063(CA)
